1 United States Court of Appeals,

Fifth Circuit.

No. 94-50194.

UNITED STATES of America, Plaintiff-Appellee,

v.

Jorge Rodrigo GARCIA, Defendant-Appellant.

March 18, 1996.

Appeal from t he United States District Court for the Western

District of Texas.

Before POLITZ, Chief Judge, and JONES and B ENAVIDES, Circuit

Judges.

POLITZ, Chief Judge:

J orge Rodrigo Garcia appeals the denial of his motion to

vacate, set aside, or correct his sentence under 28 U.S.C. § 2255.

We affirm.

Background

On November 25, 1990, Louis Rocha, a United States Border

Patrol Agent, was working FM 2644 about 20 miles west of Carrizo

Springs, Texas. Rocha noticed a man, later identified as Garcia,

near a white pickup stopped on the side of the road. Rocha asked

if there was a problem; Garcia responded that the truck had run

out of fuel. Rocha offered to radio for help or to give Garcia a

ride. Garcia declined and continued on foot. Rocha returned to

the white truck and observed that the window was rolled down, the

door was unlocked, binoculars and a pouch were on the seat, and a

CB radio was partially under the seat. As Rocha moved his car to

the side of the road t o allow passage of three vehicles—a red1 The toolbox was not completely closed and was secured by

bailing twine.

2 United States v. Garcia, 966 F.2d 676 (5th Cir.1992)

(unpublished).

2 truck, a gray Suburban, and an automobile—all going i n the

direction Garcia had walked, he detected a strong odor of marihuana

and noticed plastic w rapping protruding out of the truck's

toolb ox. 1 Upon lifting the toolbox cover Rocha discovered

approximately 220 pounds of marihuana. Rocha promptly drove to

where the walking Garcia should have been by that time but he was

not there. Rocha broadcast a description of Garcia and the three

vehicles. A deputy sheriff heard the transmission and intercepted

the red truck, driven by Garcia's brother with Garcia as a

passenger, asked them for identification, and questioned them.

They then, as directed, followed the deputy to the border patrol

stati on for further questioning. Garcia was placed under arrest

there and given the Miranda warnings.

Garcia was charged, tried , and convicted by a jury of

possession with intent to distribute more than 50 kilograms of

marihuana, and conspiracy to possess with intent to distribute more

than 50 kilograms of marihuana. The convictions were affirmed on

appeal. 2 Garcia's instant 28 U.S.C. § 2255 motion contends that he

was denied effective assistance of counsel.

Garcia claims that his tr ial counsel were ineffective for

several reasons. He maintains that counsel's failure to move for

a judgment of acquittal at the close of all the evidence resulted

in the affirmance of his conviction because this court could only3 We do not address the issue of cause; Garcia alleges that

appellate counsel's ineffective assistance constitutes cause for

failing to raise trial counsel's ineffective assistance. See

Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397

(1986) (ineffective assistance of counsel may constitute cause).

We therefore necessarily must determine whether trial counsel

were, in fact, ineffective, either to determine the underlying

claim or to determine the existence of cause.

4 Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122

L.Ed.2d 180 (1993).

5 United States v. Rosalez-Orozco, 8 F.3d 198 (5th Cir.1993).

3 review the record under the manifest miscar riage of justice

standard instead of the less onerous sufficiency of the evidence

test. He claims that trial counsel were ineffective for failing to

move to suppress his statements on the grounds that he had been

illegally seized and had not been given Miranda warnings. He

further contends that his counsel failed to subpoena certain

records necessary for his defense. His final charge is that his

trial counsel had a conflict of interest.

Analysis

In order to establish in effective assistance of counsel a

petitioner must demonstrate counsel's performance was deficient and

actually prejudiced his defense. 3 To show prejudice a petitioner

must demonstrate that his counsel's errors were so serious as to

render his trial unreliable or unfair. 4 If our examination of the

record reveals no prejudice, we need not reach Strick land 's

deficiency prong. 5

Garcia's first contention is that his trial counsel were

ineffective for failing to move for a judgment of acquittal at the6 Id.

7 United States v. Davis, 61 F.3d 291, 296 (5th Cir.1995).

8 Garcia does not claim that the statements made while at the

border patrol office should be suppressed; he challenges only

the statements made to the deputy sheriff on the roadside.

9 United States v. Shabazz, 993 F.2d 431 (5th Cir.1993).

4 close of all the evidence, a failure which he claims resulted in

the affirmance of his conviction. To determine actual prejudice in

t his setting we are to view the evidence as if counsel had moved

for a judgment of acquittal at the close of all the evidence, 6 and

inquire "whether, based on the totality of the evidence at trial,

any rational trier of fact could have found that the government

proved the essential elements of the crimes charged beyond a

reasonable do ubt." 7 We do not find this assignment of error

persuasive. The evidence, as discussed in our opinion affirming

the convictions on direct appeal, is sufficient to support the

convictions.

The second contention is that trial counsel were ineffective

for faili ng to seek suppression of statements made to the

authorities before Garcia was given Miranda warnings. Garcia

maintains that he was stopped unlawfully by the deputy sheriff and,

while in custody, was questioned without being first given Miranda

warnings. This complaint relates only to the statements made on

the side of the road. 8

A law enforcement office r may stop a vehicle based on a

reasonable articulable suspicion. 9 Generally a person subject to

such an investigative detention is not entitled to Miranda warnings10 Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82

L.Ed.2d 317 (1984).

11 United States v. Bengivenga, 845 F.2d 593 (5th Cir.) ( en

banc ), cert. denied, 488 U.S. 924, 109 S.Ct. 306, 102 L.Ed.2d

325 (1988).

5 because he is not in custody. 10 To determine custody for M iranda

purposes we ask whether a person in the suspect's position would

have been reasonable in concluding that there was a restraint on

personal movement to the degree associated with formal arrest. 11

The challenged stop was lawful because the deputy sheriff had

a reasonable articulable suspicion that the passengers were

involved in illeg al activities based on Rocha's discovery of the

marihuana and his description of the red truck and Garcia.

Moreover, Garcia was not in custody for Miranda purposes during the

roadside encounter because a reasonable person would not have

believed that his freedom of movement was restrained to the

required extent. This conclusion is supported by the fact that

after the questioned roadside encou nter Garcia and his brother

simply followed the deputy sheriff to the border patrol station and

were not transported there in the deputy's vehicle.

Garcia complains that counsel failed to subpoena border

patrol records to determine the accuracy of Rocha's testimony about

his request for assistance, his description of the red truck and

G arcia, and the time of his radio transmission. He insists that

these records would establish that what occurred was not a routine

border stop. These records were not necessary to establish this

point. It is undisputed that what transpired was not a routine12 This argument hinges on a finding that Rene Montalvo and

Jesus M. Alvarez continued to represent Garcia because they did

not withdraw as counsel even though another lawyer, G. Allen

Ramirez, actually handled his defense at trial. Montalvo and

Alvarez represented Garcia's codefendant.

13 United States v. McCaskey, 9 F.3d 368 (5th Cir.1993),

cert. denied, --- U.S. ----, 114 S.Ct. 1565, 128 L.Ed.2d 211

(1994) (in the case of an actual conflict of interest a

petitioner need not demonstrate actual prejudice).

14 Id. at 381.

6 traffic stop but, rather, a stop premised on reasonable articulable

suspicion that the passengers in the red truck were involved in the

trafficking of marihuana.

Finally, Garcia maintains that his trial counsel had a

conflic t of interest because they also represented his

codefendant. 12 Prejudice is presumed with respect to a defendant's

i neffective assistance of counsel claim if the defendant

demonstrates that his counsel actively represented conflicting

interests, and that the actual conflict of interest adversely

affected counsel's pe rformance. 1 3 " "Adverse effect' is a less

onerous standard

... than the outcome-determinative "prejudice'

standard." 14 Assuming a rguendo that Garcia's counsel had an actual

conflict of interest, this claim must fail. Garcia has not

demonstrated any adverse effect and our review of the record

discloses none. We can only conclude that Garcia's trial counsel

did not render constitutionally ineffective assistance.

The judgme nt rejecting Garcia's petition for section 2255

relief is AFFIRMED.